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Trump Election Gag Leaves Even More Difficult Questions


It took Judge Tanya S. Chutkan three sets of written documents over the past six weeks and more than two hours of courtroom arguments this week to resolve issues with the silence order she issued. imposed on former President Donald J. Trump.

And maybe that was the easy part.

Justice Chutkan issued the formal written order on Tuesday. She detailed in three brief pages how Mr. Trump is now barred from making public comments targeting members of his judicial staff, special prosecutor Jack Smith and any member of his staff, as well as “any reasonably foreseeable witness » in the vast trial. federal criminal case in which the former president is accused of seeking to overturn the 2020 election.

But the order left unanswered the most difficult questions related to Mr. Trump’s gag order. Judge Chutkan will still have to determine on a case-by-case basis which, if any, of the former president’s statements violate her ruling. And she’ll have to decide how to punish him if they do.

Hours after Judge Chutkan announced Monday during a hearing in federal district court in Washington that she would impose the order, Mr. Trump was already attacking it as an attack on his First Amendment rights and committed to appeal.

“She doesn’t really like me — her whole life doesn’t like me,” he said that evening at a campaign event in Iowa.

He then misrepresented the content of Judge Chutkan’s decision.

“Do you know what a gag order is? Mr. Trump, the current front-runner for the 2024 Republican nomination, asked the crowd. “You can’t say bad things about your opponent.”

In fact, Judge Chutkan’s order leaves Mr. Trump free to criticize President Biden, as well as his administration and the Justice Department. It also allows him to attack “the campaign programs or policies” of Mike Pence, who served as his vice president, is a likely witness in the case and is also a rival to Mr. Trump in the 2024 primary .

Judge Chutkan’s order leaves Mr. Trump free to attack him as well. He also affirms that he can proclaim his innocence and continue to assert, as he has done on several occasions, that the prosecutions brought for attempting to remain in power against the will of the voters are “politically motivated”.

Still, the order’s language is broad enough in places that it could give rise to disputes over whether some of Mr. Trump’s statements are covered.

Near the end of the order, for example, Judge Chutkan wrote that Mr. Trump was not permitted to “target” individual participants in the case. That word could be interpreted to prohibit a wide range of statements, not just those that were “derogatory, inflammatory or intimidating” — the category prosecutors sought.

The text of the order also said Mr. Trump was prohibited from attacking any potential witnesses “or the substance of their testimony.” The lack of detail on how to define these attacks left open the possibility that any sort of negative remarks about a witness – even ones unrelated to the case – could constitute a violation of the order.

Ambiguities also emerged during the hearing itself.

At one point Monday, prosecutor Molly Gaston appeared to give conflicting answers to a hypothetical question posed by Judge Chutkan: Would Mr. Trump be violating the silence order if he said that “crooked Joe Biden” had approved or ordered the indictment in this case as a means of interfering with next year’s elections?

Ms. Gaston’s initial answer was “yes,” as she suggested the order as proposed would prevent Mr. Trump from lying about Mr. Biden’s role in the matter. Mr. Trump, she told the judge, could not make any statement “falsely suggesting that President Biden led these prosecutions, which he did not.”

But when Justice Chutkan probed the question further, Ms Gaston appeared to give a different answer. This time, she said that if Mr. Trump claimed that Mr. Biden had ordered the Justice Department to prosecute him, that would not violate the order.

Indeed, “Joe Biden is not a party, witness, attorney, court member or potential juror” in the case, Ms. Gaston said, and so he would not be covered by the order.

Mr. Trump has often sought, without evidence, to portray Mr. Smith as acting at the direction of Mr. Biden in making the three conspiracy charges that are at the heart of the case. And just hours before Judge Chutkan released the written version of her order, he addressed directly the ambiguous issue she explored with Ms. Gaston on Monday.

“Crooked Joe Biden told the DOJ to indict TRUMP hoping it would help his campaign against me and the Republicans,” he wrote Tuesday morning on Truth Social, his social media platform. “In other words, he indicted his political opponent.”

Mr. Trump has also taken to calling Mr. Smith “deranged” and referring to members of his team as “thugs.” Additionally, he attacked potential witnesses in the case, including Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff.

After General Milley gave several interviews critical of Mr. Trump, the former president suggested that he had committed treason and that, in the past, he could have been executed.

Judge Chutkan argued that Mr. Trump should not be allowed to carry out such attacks for a simple reason: They put people in danger.

“Undisputed testimony cited by the government demonstrates that when the defendant has publicly attacked individuals, including on issues related to this case,” she wrote, “those individuals are consequently threatened and harassed.”

But while Judge Chutkan’s order made clear that Mr. Trump’s attacks could be threatening, or even lead to violence, she was silent on the question of what she would do to enforce it.

A violation of a silence order is treated like a violation of any court order – as a matter of contempt of court, which may result in a reprimand, fine or imprisonment. But how that would play out is complicated, legal experts say.

One type of contempt is “civil contempt” – which can also arise in a criminal case. It is typically used to compel future compliance with an order, such as to compel a recalcitrant witness to stop defying a subpoena and testify. The other type is “criminal contempt,” which is more intended to punish past disregard of an order and vindicate the court’s authority.

Past disputes over silence orders have arisen most often in the context of gagging defense attorneys. Margaret C. Tarkington, a law professor at Indiana University, Indianapolis, is an expert on lawyers’ free speech rights. She said normally – but not always – judges treat violations of silence orders as a matter of criminal contempt.

This is important because in federal court, judges cannot unilaterally impose a fine or order a person’s imprisonment for criminal contempt. Rather, such an allegation is treated as a new offense that requires the appointment of a prosecutor and another trial – including the right to a jury decision.



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